Making Good Lawyers
University of Denver Sturm College of Law
Russell G. Pearce
Fordham University School of Law
January 23, 2013
9 U. St. Thomas L. J. 403 (2011)
U Denver Legal Studies Research Paper No. 13-04
Fordham Law Legal Studies Research Paper No. 2206030
Today, the criticism of law schools has become an industry. Detractors argue that legal education fails to effectively prepare students for the practice of law, that it is too theoretical and detached from the profession, that it dehumanizes and alienates students, too expensive and inapt in helping students develop a sense of professional identity, professional values, and professionalism. In this sea of criticisms it is hard to see the forest from the trees. “There is so much wrong with legal education today,” writes one commentator, “that it is hard to know where to begin.”
This article argues that any reform agenda will fall short if it does not start by recognizing the dominant influence of the culture of autonomous self-interest in legal education. Law schools engage in a project of professional formation and instill a very particular brand of professional identity. They educate students to become autonomously self-interested lawyers who see their clients and themselves as pursuing self-interest as atomistic actors. As a result, they understand that their primary role is to serve as neutral partisans who promote the narrow self-interest of clients without regard to the interests of their families, neighbors, colleagues, or communities and to the exclusion of counseling clients on the implications of those interests. They view as marginal their roles as an officer of the legal system and as a public citizen and accordingly place a low priority on traditional professional values, such as the commitment to the public good, that conflict with their primary allegiance to autonomous self-interest.
In this work of professional formation, law schools are reflecting the values and commitments of the autonomously self-interested culture that is dominant in the legal profession. Therefore, even if law schools sought to form a professional identity outside of the mold of autonomous self-interest, such a commitment would require much more than curricular reform. It would, at minimum, require the construction of a persuasive alternative understanding of the lawyer’s role.
The article seeks to offer such an understanding grounded in a relational perspective on lawyers and clients. Part I offers workable definitions of professionalism and professional identity that enable an informed discussion of the formation of professional identity in and by law schools. Part II explores what and how legal education teaches students showing that both institutionally (at the law school level) and individually (at the law professor level) legal education is proactively engaged in the formation of a professional identity of autonomous self-interest. Part II further explains that its dominance in legal education notwithstanding, autonomous self-interest is but one, often unpersuasive, account of professionalism and professional identity. Part III turns to the competing vision of relationally self-interested professionalism and professional identity and develops an outline for legal education grounded in these conceptions. Because legal education reflects a deep commitment to the dominant culture of autonomous self-interest, it is unlikely that reform proposals that are inconsistent with that culture are likely to succeed in the near future. Yet proposing an alternative account of professional identity that exposes the assumptions of the dominant culture, explains their limitations, and develops a more persuasive understanding is a necessary step toward providing a workable framework for reformers committed to promoting professional values in the long term.
Number of Pages in PDF File: 44
Date posted: January 24, 2013